Updated 8/11: This article has been updated for clarification purposes.
The letter sent to Hupp threatened further legal action if he did not remove the listing. It stated that Hupp was not an “authorized reseller” and accused him of false advertising because he listed the product as “new.” Hupp removed the listing, though in a response to Vorys, he said that his sale of the game was protected by the First Sale Doctrine, which allows people to re-sell and lend out copyrighted works as long as they are not altered to be “materially different from those originating from the trademark owner.”
“Unless you remove all Bethesda products, from your storefront, stop selling any and all Bethesda products immediately and identify all sources of Bethesda products you are selling, we intend to file a lawsuit against you.”
Vorys said that Hupp’s listing of The Evil Within 2 was not protected by the First Sale Doctrine since it lacks the warranty that Bethesda games have when they’re purchased new from an authorized seller, and therefore it is “materially different.” As pointed out by Polygon, this logic could technically apply to virtually all used game sales.
If a lawsuit were filed and this issue was taken to court, it could set a precedent that would effectively make selling used games illegal. Bethesda has a reputation for filing lawsuits, so if Hupp didn’t comply with its demands, it seems very possible that legal action would have been taken. However, it’s unlikely that Bethesda would have sent the letter to Hupp if he were selling the game as “used,” even though it was technically “new,” as a customer would not expect a used game to come with the same warranty as one sold from a retail store.
The Evil Within 2 is out now for PC, PS4, and Xbox One.
Source: Polygon
